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South Dakota Public Utilities Commission Meeting
Tuesday, January 17, 2006, at 1:30 P.M.
State Capitol Building, Room 468
Pierre, South Dakota
MINUTES OF THE COMMISSION MEETING
Chairman Bob Sahr called the meeting to order. Also present were Vice Chairman Dustin Johnson; Executive Director Patty Van Gerpen; Deputy Executive Director Heather Forney; Commission Attorneys John Smith and Rolayne Ailts Wiest; Commission Advisor Greg Rislov; Staff Attorneys Karen Cremer and Sara Greff; Staff Analysts Dave Jacobson, Harlan Best, Bob Knadle, Phil Lusk, and Steve Wegman; Consumer Affairs Supervisor Deb Gregg, and Consumer Affairs Representative Jason Schuchard; Administrative Secretary Tina Douglas; and Cheri Wittler, Court Reporter.
Also present were Denny Law, Golden West Telecommunications Cooperative, Inc.; Darla Rogers, Riter, Rogers, Wattier & Brown representing Golden West Telecommunications Cooperative, Inc. and LECA; Bob Miller, South Dakota Electric Utility Companies; Talbot Wieczorek, Gunderson, Palmer, Goodsell & Nelson representing AllTel; and Rich Coit, South Dakota Telecommunications Association.
Joining the meeting by telephone were Colleen Sevold, Qwest Corporation; Jim Adkins, Swiftel Communications; David LaFuria and Lynn Ratnavale, Lukas Nace Law Firm representing Swiftel Communications; Marlene Bennett, Martin Group; and Doug Eidhal and Larry Thompson, Vantage Point.
Chairman Sahr noted at the commencement of the meeting that Commissioner Hanson was intending to attend the meeting and might join later on, but that he had suffered a health emergency. Commissioner Hanson was not able to join the meeting.
Commissioner Johnson moved to approve the Minutes of the Commission Meetings held on December 6 and December 20, 2005. Chairman Sahr seconded. Motion passed 2-0.
1. Status Report on Consumer Utility Inquiries and Complaints Received by the Commission. (Consumer Affairs: Deb Gregg)
Ms. Deb Gregg reported that the Commission had received a total of 52 consumer contacts during 2006. Since the last report was prepared for the December 20, 2005, Commission meeting, 178 of these contacts had been received; 44 contacts involved telecommunications services; 25 contacts involved electricity issues; 44 contacts involved natural gas issues; 3 contacts involved gas and electric services; 12 contacts involved cellular phone issues; 22 contacts involved do not call issues; and 28 contacts involved issues not regulated by the Public Utilities Commission. In 2005, 1,641 of the 1,882 complaints registered have been resolved informally.
1. CT05-001 In the Matter of the Complaint filed by WWC License LLC against Golden West Telecommunications Cooperative, Inc., Vivian Telephone Company, Sioux Valley Telephone Company, Armour Independent Telephone Company, Bridgewater Canistota Independent Telephone Company and Kadoka Telephone Company Regarding Intercarrier Billings. (Staff Analyst: Harlan Best, Staff Attorney: Rolayne Ailts Wiest)
See Transcript which is available at the Public Utilities Commission office.
Commissioner Johnson moved to defer CT05-001. Chairman Sahr seconded. Motion passed 2-0.
1. EL05-018 In the Matter of the Request by Otter Tail Power Company for Approval of an Affiliated Wind Power Purchase Agreement and of Change in Fuel Adjustment Clause Calculation. (Staff Analysts: Keith Senger/Dave Jacobson, Staff Attorneys: Karen Cremer/Sara Greff)
Mr. Dave Jacobson stated that on December 16, 2005, Otter Tail Power filed a request to withdraw the filing and dismiss the docket without prejudice.
Chairman Sahr moved to dismiss and close the docket without prejudice. Commissioner Johnson seconded. Motion passed 2-0.
Mr. Dave Jacobson stated that NorthWestern Corporation and staff request that this docket be deferred
Commissioner Johnson moved to defer EL05-027. Chairman Sahr seconded. Motion passed 2-0.
Ms. Karen Cremer stated that staff is requesting to suspend the effective date of LECA's switched access rate for an additional 60 days after the proposed effective date of February 1, 2006. All parties have been notified of staff's request.
Commissioner Johnson moved to suspend the effective date of LECA's switched access rate for an additional 60 days after the proposed effective date of February 1, 2006. Chairman Sahr seconded. Motion passed 2-0.
2. In the Matter of the Approval of Amendments to Agreements in Dockets TC05-195, TC05-196, and TC05-220
TC05-220 In the Matter of the Filing for Approval of an Amendment to an Interconnection Agreement between Qwest Corporation and Metropolitan Telecommunications of South Dakota, Inc. (Staff Attorney: Sara Greff)
Ms. Sara Greff stated that all the companies have active Certificates of Authority, that the Amendments to the Agreements have been properly filed, have been properly executed and do not appear to contain discriminatory provisions and that no comments were filed. Ms. Greff recommended approval of the Amendments to the Agreements.
Commissioner Johnson moved to approve the Amendments to the Agreements in TC05-195, TC05-196, and TC05-220. Chairman Sahr seconded. Motion passed 2-0.
3. TC04-213 In the Matter of the Filing by Brookings Municipal Utilities d/b/a Swiftel Communications for Designation as an Eligible Telecommunications Carrier. (Staff Analyst: Harlan Best, Staff Attorney: Karen Cremer)
Chairman Sahr moved that the Commission find that Brookings Municipal Utilities d/b/a Swiftel Communications has met the requirements to be designated as an ETC and that it is in the public interest to designate Swiftel in the following areas:
For the non-rural areas currently served by Qwest, Chairman Sahr moved that Swiftel be designated as an ETC for the wire centers listed on its most recently submitted Exhibit B.
For the rural areas Chairman Sahr also moved that the Commission find it is in the public interest to grant Swiftel ETC status. For the rural areas where Swiftel has committed to serving the rural telephone companies' entire service areas, I move that Swiftel be designated in the service areas of the rural LECs listed on its most recently submitted Exhibit C.
For the rural areas where Swiftel will not serve the entire study areas, Chairman Sahr also moved that the Commission redefine the service areas of the rural LECs listed on its most recently submitted Exhibit D. These redefinitions are contingent upon the FCC's concurrence in the redefinitions. If the FCC concurs in the redefinitions, then Swiftel will be designated as an ETC for those areas.
Chairman Sahr further moved that the Commission impose the following conditions:
1. On or before February 1, 2006, Swiftel shall file its advertising plans and materials for South Dakota that it plans to use to inform consumers of its universal service offerings. Included in these advertising plans and materials shall be the advertising plans and materials regarding the Lifeline and Link-up programs and the forms for applying for Lifeline and Link-Up in South Dakota.
2. On or before February 1, 2006, Swiftel shall file its service agreements pursuant to which it intends to offer its universal service offerings in South Dakota. The agreements shall be consistent with the Commission's service quality rules and shall also advise customers that they may qualify for financial assistance under the federal Link-Up and Lifeline programs and provide basic information on how to apply.
3. The service agreement shall state that any disputes or claims arising under the service agreement may be subject to the Commission's complaint jurisdiction, at the consumer's option. Thus, Swiftel's service agreements shall not compel submission of disputes to arbitration which would deprive customers of access to the complaint procedures of SDCL chapter 49-13 and ARSD Chapter 20:10:01.
4. Consistent with its obligations pursuant to section 214(e)(1), Swiftel shall continue to build out facilities and extend service to meet the statutory objective of offering service "throughout the service area for which the designation is received. . . ."
5. In conjunction with, but separate from and in addition to its annual certification filings under 47 C.F.R. §§ 54.313 and 54.314, Swiftel shall submit records and documentation on an annual basis detailing its progress towards meeting the statutory objective of offering service throughout the service areas for which the designation is received. At a minimum, such information shall detail the location and cost of material capital expenditures made by Swiftel within the State of South Dakota during the preceding annual period and shall include its proposed capital budgets for the State of South Dakota for the ensuing year. Swiftel shall work with Commission Staff to determine what constitutes material expenditures. If Swiftel and Staff are unable to agree, either party shall bring the issue before the Commission for a decision.
6. Swiftel shall annually submit proposed plans for the upcoming calendar year which set forth Swiftel's proposed plans for the construction of new facilities and service enhancements to existing facilities. The plans shall be submitted on or before March 1st of each year. Following the first filing, Swiftel's subsequent annual filings shall also include a report stating whether the proposed plans were implemented, any deviations from the previous year's proposed plans, and the reasons for any deviations. Following this annual filing, Swiftel shall meet with Commission Staff to discuss the proposed plans and any deviations from a previous year's proposed plans.
7. Swiftel shall commit to and abide by the terms of the Cellular Telecommunications Industry Association Consumer Code for Wireless Service as it is amended from time to time.
8. By March 1st of each year, Swiftel shall provide annual reports detailing the consumer complaints it has received during the previous one year period. This report shall include the nature and location of the complaints.
9. By March 1st of each year, Swiftel shall provide a report itemizing the number of unfulfilled requests Swiftel received to provide service to a current customer's residence during the previous year and requests for service from potential customers within Swiftel's service areas that went unfulfilled during the previous year, including the steps Swiftel took to provide service and the reasons why such requests went unfulfilled. Following the submission of this report, Swiftel shall meet with Commission Staff to discuss the report.
10. In the event that Commission Staff believes that information beyond what Swiftel has provided is necessary for Staff and the Commission to perform their responsibilities relating to Swiftel's meeting its obligations under the law and this Order, Staff shall first make a request for such information to Swiftel. If Swiftel objects to such request, Staff and Swiftel shall first confer in an effort to resolve the issue. If after such conference, Staff and Swiftel are unable to reach agreement concerning the need for such information or the reasonableness of such request, Staff may petition the Commission for an order modifying the Conditions herein upon a showing of good cause therefor.
Chairman Sahr would further note that by this motion he is not recommending that the Commission approve Swiftel's proposed five year buildout plan it submitted in this proceeding. The five year plan appears to be more of a plan on how it might spend anticipated USF funds as opposed to a plan on how Swiftel intends to provide service throughout the service areas. For example, it is doubtful that Swiftel can meet the standard of providing service throughout the service area for which designation is received by putting up a few repeaters in the next five years. Thus, each year, the Commission should closely review Swiftel's records of expenditures and where those expenditures are occurring in order to determine whether Swiftel is complying with the statutory requirement. As the Commission stated in its RCC decision, if a competitive ETC is unable or unwilling to provide service throughout its service areas within a reasonable time frame, the Commission will revoke that carrier's ETC status.
Commissioner Johnson seconded. Motion passed 2-0.